2010-17700. Proposed Settlement Agreements, Clean Air Act Citizen Suit

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Proposed Settlement Agreements; Request for Public Comment

SUMMARY:

In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the “Act”), 42 U.S.C. 7413(g), notice is hereby given of six proposed settlement agreements to address lawsuits filed by the American Chemistry Council, the American Public Gas Association, the American Petroleum Institute, et al., the Energy Recovery Council, the Fertilizer Institute, and the Utility Air Regulatory Group (collectively “Petitioners”) in the United States Court of Appeals for the District of Columbia: American Chemistry Council v. EPA, No. 09-1325 (D.C. Cir.) and consolidated cases. Petitioners filed petitions for review of EPA's final rule entitled “Mandatory Reporting of Greenhouse Gases”, published at 75 FR 56,260 (October 30, 2009). Under the terms of the proposed settlement agreements, Petitioners would dismiss their claims if EPA proposes and, after notice and comment, takes final action on certain revisions to the final rule.

DATES:

Written comments on the proposed settlement agreements must be received by August 19, 2010.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-HQ-OGC-2010-0575, online at http://www.regulations.gov (EPA's preferred method); by e-mail to [e-mail]; by mail to EPA Docket Center, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; or by hand delivery or courier to EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC, between 8:30 a.m. and 4:30 p.m. Monday through Friday, excluding legal holidays. Comments on a disk or CD-ROM should be formatted in Word or ASCII file, avoiding the use of special characters and any form of encryption, and may be mailed to the mailing address above.

FOR FURTHER INFORMATION CONTACT:

Carol Holmes, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone: [phone]; fax number [phone]; email address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Settlement Agreements

On September 22, 2009, EPA finalized the first comprehensive reporting program for greenhouse gases (“GHGs”) under the Clean Air Act (“CAA” or “the Act”). 75 FR 56,260 (October 30, 2009) (“2009 Final GHG Reporting Rule”). The 2009 Final GHG Reporting Rule requires reporting of greenhouse gas emissions from large sources and suppliers in the United States, and is intended to collect accurate and timely emissions data to inform future policy decisions. Under the rule, suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions are required to submit annual reports to EPA. The rule became effective December 29, 2009.

Eight petitions for review were filed in the DC Circuit challenging the 2009 Final GHG Reporting Rule: American Chemistry Council (09-1325); Energy Recovery Council (09-1326); American Petroleum Institute and National Petroleum Refiners Association (09-1328); The Fertilizer Institute (09-1329); American Public Gas Association (09-1331); Kinder Morgan CO2 Co., LP (09-1332); Utility Air Regulatory Group (09-1333); and Environmental Defense Fund (09-1334). Five petitioners or groups of petitioners also filed petitions for reconsideration of the 2009 Final GHG Reporting Rule (American Public Gas Association; American Petroleum Institute, et al.; the Energy Recovery Council; the Utility Air Regulatory Group; and the Environmental Defense Fund). Both the petitions for review in the DC Circuit, and the petitions for reconsideration, raise issues with the final requirements of the 2009 Final GHG Reporting Rule. Upon EPA's motion, on February 22, 2010, the court issued an order holding the consolidated cases in abeyance pending EPA's consideration of the petitions for reconsideration and the parties' settlement discussions.

Under the proposed settlement agreements being noticed today, five petitions for review would be dismissed in their entirety, and one dismissed in part, if EPA proposes and finalizes certain revisions to the 2009 Final GHG Reporting Rule. The administrative petitions filed by the settling parties also would be deemed withdrawn under the terms of the proposed settlement agreements. Two petitions for review—that of the Environmental Defense Fund and that of Kinder Morgan CO2 Co., LP—would not be settled at this time. Rather, these petitions would continue to be held in abeyance, pending further settlement discussions or action by EPA that renders the petition(s) moot.

Pursuant to the proposed settlement agreements, EPA would be proposing and taking final action on four primary categories of changes to the 2009 Final GHG Reporting Rule: (1) Revising the applicability threshold for one source category; (2) revising the threshold for more stringent monitoring for one type of combustion source; (3) providing an option to request the continued use of best available monitoring methods until 2015 if, at a complex facility, a shutdown or hot tap is required to install measurement equipment; and (4) generally revising monitoring, recordkeeping and reporting requirements in various subparts.

For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed settlement agreements from persons who were not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed settlement agreements if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines, based on any comment submitted, that consent to these settlement agreements should be withdrawn, the terms of the agreements will be affirmed.

II. Additional Information About Commenting on the Proposed Settlement Agreements

A. How can I get a copy of the settlement agreements?

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2010-0575) contains copies of the proposed settlement agreements. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the OEI Docket is [phone].

An electronic version of the public docket is available through http://www.regulations.gov. You may use http://www.regulations.gov to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, key in the appropriate docket identification number then select “search”.

It is important to note that EPA's policy is that public comments, whether submitted electronically or on paper, will be made available for public viewing online at http://www.regulations.gov without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. Information claimed as CBI and other information whose disclosure is restricted by statute is not included in the official public docket or in the electronic public docket. EPA's policy is that copyrighted material, including copyrighted material contained in a public comment, will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the EPA Docket Center.

B. How and to whom do I submit comments?

You may submit comments as provided in the ADDRESSES section. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment and with any disk or CD-ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Use of the http://www.regulations.gov Web site to submit comments to EPA electronically is EPA's preferred method for receiving comments. The electronic public docket system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment. In contrast to EPA's electronic public docket, EPA's electronic mail (e-mail) system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through http://www.regulations.gov,, your e-mail address is automatically captured and included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

Dated: July 14, 2010.

Richard B. Ossias,

Associate General Counsel.